U.S. Travelers' Ability To Ignore Brexit Is About To End

Travelers with their suitcases wait outside the Heathrow Premier Inn for the terminal shuttle bus to take them to their required terminal at Heathrow airport. (photo by Andrew Aitchison / In pictures via Getty Images)

For most Americans the whole notion of “Brexit” has been one giant, yawn-inducing “meh” since Britons voted 28 months ago to take the United Kingdom out of the European Union, and really over the 20 preceding years as factions within the British electorate argued what the U.K.’s position within the EU should or should not be.

But come April, U.S. travelers’ “meh” response to Brexit could turn quickly into an “Oh my!”

Negotiators from a wide number of agencies and government departments in the U.S., the U.K, and the EU must negotiate a host of new, complex agreements governing the legal, financial, safety and operational aspects of flying passengers, cargo and even the planes themselves by March 29. If they can’t reach such deals over the next 20 or so weeks much, most or even all of that flying could fall into legal purgatory where it is neither authorized nor quite banned. Furthermore, it’s instructive to know that historically such deals often take years to negotiate. Thus, since such formal talks have not yet even begun, in part because some of the parties have stubbornly avoided engaging with each other formally, chances are very high that Brexit will happen next spring without the necessary aviation-related treaties and bilateral agreements in place.

Admittedly, it’s easy to ring the alarm bells too loudly over U.S.-U.K.-EU air transport issues ahead of Brexit next spring. That’s because so very little work toward establishing a new basis for those international trade relationships has been done. Thankfully, however, many of those involved – on both the government and the business sides of the equation - seem to be banking on all parties extending each other considerable good will and forbearance to allow commercial air service to continue operating much the same as does today even if a “hard Brexit” – one without new, replacement deals and terms in place – happens. In that case, travelers between the U.S. and the U.K. would encounter little or no difference after Brexit.

But, that’s a risky premise that could be brought tumbling down by the filing of lawsuits or, God forbid, the crash of even just one plane during a legally fuzzy interim period. That’s because international aviation is dependent upon a maze of inter-governmental agreements that cover everything from the prices charged for tickets to the licensing of pilots and the mechanics who work on their planes, and even to liability issues in the event of injuries, death or major disruptions.

EU and UK flags waving side-by-side as a symbol of Brexit, which is schedule to occur in March. Getty Images Illustration

Here are just a few examples of aspects of aviation that are governed by treaties or bilateral agreements between nations – the absence of which could make flying between any two countries legally questionable or even impossible.

Aircraft certification. Currently British planes are certified by the European Aviation Safety Agency, an EU agency. Without a new U.S.-U.K. deal covering aircraft certification, maintenance and related matters British planes conceivably could not land in the U.S., nor could American planes land in the U.K. because their certifications would be invalid in the eyes of the other nation. A “stand-still” agreement could be put into place honoring pre-Brexit certifications, etc., for some interim period. But under what legal authority would challenges or suits be adjudicated, especially in the event of a crash or other life-threatening incident? That’s the kind of obscure but very important question that could cause such interim deals to fall apart or never to be agreed to in the first place.

Pilot, mechanic and dispatcher licensing. Same problem, really.

Route authorities. Current U.S.-E.U. services are operated under an “Open Skies” agreement that essentially allows carriers from all involved nations to fly where, when and at whatever price they wish. But after Brexit it’s not clear what will govern U.S.-U.K. services. If the U.S.-EU Open Skies agreement stops covering air services to and from the U.K. do we go all the way back to the old, much more restrictive U.S.-U.K. bilateral agreement called Bermuda II that was in place before the U.S.-EU Open Skies deal superseded it? If that happens all sorts of perverse results could result. Delta could lose its rights to serve Heathrow Airport in London, Europe’s most important hub. American and United also could lose the right to operate certain routes to Heathrow rather than the less popular Gatwick, to which some of their services were relegated before Open Skies took hold. And might the governments of the U.K. and the U.S. regain authority - responsibility, really - to approve or disapprove proposed fares and services offered for additional money before the the airlines could begin selling those fares and services? No one involved wants those things to happen, but they just might without a new post-Brexit U.S.-U.K. air services deal being put into place.

Consumer protections and intra-industry legal disputes. EU members must submit to the authority of the European Court of Justice, so EU carriers’ turn to the ECJ to resolve commercial complaints against them brought by competitors and customers alike. After a hard Brexit, though, it’s not clear what legal authority would handle legal challenges from consumers, or from vendors, competitors and others against British-owned carriers.

Competition rules. American’s global alliance with British Airways could be thrown into a mess by a hard Brexit. It exists with the blessing of antitrust regulators in the U.S. and the E.U. British competition authorities did approve a smaller alliance between American and British Air prior to the E.U. taking over antitrust review authority from the British government and prior the AA-BA alliance expanding significantly. Under what authority would such a broader alliance continue if there’s not a new U.S.-U.K. deal covering those anti-trust concerns? United and Delta have alliances with Lufthansa and Air France, respectively (and others). That means they currently can sell tickets on flights from the U.S. to London, and then on to other European destinations, swapping passengers from one airline to the other at London as if they were single carriers. In a hard Brexit scenario that ability would be threatened because the U.K. does not yet have a deal with the E.U. allowing such services. Why, some EU leaders have even suggested that British airlines will lose all authority to fly to any EU destination on the Continent or in Ireland. That would make it possible for Americans, among others, from scheduling any trip to Europe that includes a stop in the U.K.

Foreign ownership complications. British Air is owned by International Aviation Group, which is legally based in Madrid (it also owns Aer Lingus and Iberia, and several other E.U.-based carriers). Does that mean that B.A. is no longer a British-owned airline and therefore subject to the E.U.’s rules rather than Britain’s? And if so, would BA even have the right to continue flying to the United States from Britain? For that matter, would BA even continue to have the right to fly to, from or within Britain itself.

Nobody really expects total chaos in international air service to result from a hard Brexit, if such comes about, as now seems increasingly likely. But some degree of confusion and instability is likely. And a tumble into travel planning chaos still cannot be ruled out entirely.

That’s just now beginning to create problems for Americans – both leisure travelers who right about now are starting to plan their summer 2019 vacations, and business travelers, who’ll soon be laying out plans for their international trips in 2019 once they’ve completed their annual budget planning processes this fall. As those would-be American travelers start thinking about when, how and where to travel beginning next April, some – perhaps many – of them will discover that the notion of Brexit no longer is the “meh” subject they thought it was all this time. Rather, many of them will learn that it very easily and quickly can become a confounding, full-on “Oh My!” problem.

I wrote my first airline-related news story in May 1982 – about the first bankruptcy filing of Braniff International Airways. That led to 26 years covering airlines and related subjects at the Fort Worth Star-Telegram and USA TODAY. I followed the industry through the entir...